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Visa cancellation review could lead to ministerial abuses of power

15th Mar 2018

Plans by the federal government to examine reviews of visa cancellations made on criminal grounds could put Australian children at risk, the Australian Lawyers Alliance (ALA) said today.

Federal Parliament Joint Standing Committee on Migration Chairman Jason Wood MP said it was important to prevent criminal elements from using Australia's migration system for their own ends.

However, ALA spokesperson and barrister Greg Barns said that the Committee intends to review the scope of the Administrative Appeals Tribunal's (AAT) jurisdiction to review ministerial decisions. This suggests that the government could be planning to remove the AAT’s jurisdiction to overturn improper visa cancellations.

“The ALA is concerned that this inquiry is being used by the Home Affairs Minister to severely curtail or even eradicate the rights of individuals, whose lives or families are materially impacted by having a visa cancelled by ministerial decree, to have a right to independent review,” Mr Barns said.

“The AAT has reversed decisions by Home Affairs Minister Peter Dutton to cancel valid visas on a number of occasions, in some cases for people who have lived in Australia for decades.”

Under section 501 of the Migration Act 1958, visas can be cancelled if the Minister ‘reasonably suspects’ that the individual does not pass the character test. While the test includes assessing someone’s criminal history, the fact that cancellation can occur on the basis of a suspicion is particularly concerning. In such circumstances, an AAT review can be essential to ensure that a visa is not cancelled unfairly.

“While it is reasonable for people to be punished when they are convicted of a crime in line with the law, cancelling visas can destroy lives, families and communities,” Mr Barns said.

“Visas of people who have been in Australia almost since birth, who might not even be aware that they are not citizens, have been cancelled. Reviews by the AAT are the only thing that has stopped more families from being torn apart.”

“Section 501 visa cancellations affect entire communities. Parents with dependent, Australian children have had visas cancelled, even where the ramifications for their Australian children are devastating,” Mr Barns said.

“If the child’s Australian parent is unable to care for them, due to illness for example, these cancellations can leave children without a guardian.”

“The family’s connections in the community and the number of children meant that moving the family abroad was not an option for them. The only possible outcome of cancelling this man’s visa was that the family would be torn apart, and an unwell woman would be left raising eight children alone.”

“Ensuring that such outcomes are thoroughly reviewed before they are confirmed is essential,” Mr Barns said.

“This review is clearly an attempt to change the rules of the game and leave people without a pathway of recourse or review if the minister makes an arbitrary decision to cancel their visa,” Mr Barns said.

“This is yet another power grab by a minister who has already combined the intelligence, border security and law federal enforcement departments into one super-sized ministry.”

“It is a fundamental premise of the rule of law in a democracy that there are checks on the power of the Executive, and if there are abuses of that power by a minister that there are avenues for redress,” Mr Barns said.